Chapter 24: Article 112a, UCMJ Wrongful use of a controlled substance
§ 24:1
Elements
§ 24:2
Discussion
§ 24:3
Urinalysis Cases
§ 24:3
Standard Instructions
§ 24:4
Maximum Punishments
§ 24:5
Lesser Included Offenses
§ 24:1 – Elements
Wrongful possession of controlled substances
- That the accused possessed a certain amount of a controlled substance; and,
- That the possession by the accused was wrongful.
Wrongful use of controlled substances
- That the accused used a controlled substance; and,
- That the use by the accused was wrongful.
- That the accused distributed a controlled substance; and,
- That the distribution by the accused was wrongful.
- That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and,
- That the introduction was wrongful.
- That the accused manufactured a certain amount of a controlled substance; and,
- That the manufacture was wrongful.
- That the accused (possessed)(manufactured)(introduced) a certain amount of a controlled substance; and,
- That the (possession)(manufacture)(introduction)was with the intent to distribute.
- That the accused (imported into the customs territory of)(exported from) the United States a certain amount of a controlled substance, and,
- That the (importation)(exportation) was wrongful.
§ 24:2 – Discussion
Under Article 112a (c), a controlled substance means:
-amphetamine
-cocaine
-heroin
-lysergic acid diethylamide
-marijuana
-methamphetamine
-opium
-phencyclidine
-barbituric acid; and,
-any substance included in Scheduls 1 – V established by the Controlled Substances Act of 1970 (21 U.S.C. § 812)
There are some important pointers involving pleadings. In some cases, proving the exact date and location of a drug use – particularly where the only evidence is a positive urinalysis test – courts can be forgiving. When the specification alleged divers occasions, any exceptions and substitutions require specificity regarding the particulars of the offense. [1] Though the manual does not specifically create a mens rea, a lack of knowledge regarding the substances in question may create a mistake of fact defense. The appellate courts have specifically required that juries be instructed that the accused knowingly used a controlled substance.[2]
A simultaneous possession of different types of controlled substances can be only one offense for sentencing purposes.
The focus of this chapter for the practitioner is on wrongful use cases. Distribution prosecutions in the military are often the result of controlled or monitored purchases. The military is unique, however, because was allow for the prosecution of service members for the wrongful use of a controlled substance when they fail a urinalysis test. The manual for courts-martial advises that an intent to distribute can be inferred from circumstantial evidence including:
-possession of a quantity of a substance in excess of that which one would be likely to have for personal use
-the market value of a particular substance
-the manner in which the substance is packaged; and,
-evidence that the accused does not personally use a particular substance
Possession with intent to distribute does not necessarily require ownership of the controlled substance. [3]However, expert testimony regarding dosage units, resale value, packaging, and other aspects of distribution may be necessary. Additionally, the idea of constructive possession requires a right to exercise dominion and control over the substance.[4]
A person can be guilty of an attempted possession, by possessing a legal drug, though he or she believes it to be an illegal drug.[5]
The difficulty for inexperienced lawyers is in understanding the science behind wrongful use and urinalysis cases. In the absence of a confession, one might wonder how the government would prove that a person knowingly or wrongfully used a substance based only on the results of a urinalysis. The military criminal justice system - in defiance of both reason and science - has created the following presumptive inference in the explanation to Article 112a “knowledge of the presence of a controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence.” The authors have yet to hear a government toxicologist testify that they can determine whether a person knowingly ingested a controlled substance based upon the findings of a gas chromatograph and mass spectrometer. The creation of the presumptive inference was not a proud moment for our system of justice.
A more in depth discussion of urinalysis cases is included below.
§ 24:3 – Urinalysis Cases
A substantial portion of military drug cases result from a positive urinalysis. Expert testimony explaining the testing methods is required. A list of the cut-off levels for drug screening tests is included in Appendix (XXX). Also included is a chart of approximate durations that the body retains the metabolite of common controlled substances. Expert testimony will be required both to prosecute and defend the case.
Defenses in urinalysis cases can generally be divided into one or more of several categories:
-Innocent ingestion
-Lack of probable cause or consent
-Irregularities in the testing procedures (e.g. improper observation procedures, chain of custody problems, faulty testing, laboratory error)
-Good military character
Passive inhalation and innocent ingestion cases logically require a concession that the Soldier was exposed to a controlled substance for a particular period of time. This defense can be successful where the quantity of metabolite found is small. It is often helpful to have the client, very early in the case, create a timeline accounting for his or her whereabouts and potential exposure to controlled substances.
Successful defenses based on lack of probable cause or lack of consent are few and far in between. Consent, is of course, a question of voluntariness applying the totality of the circumstances test.[6] Threats by the commander that he or she will order a search if the accused does not consent do not per se create a circumstance of coercion. The totality of the circumstances still applies.[7] Probable case can provide an alternate basis for admissibility in the absence of consent. A urinalysis for medical purposes is also acceptable under Military Rule of Evidence 312 (f). Regulations such as Army Regulation 600-85, however, may limit the use of medical tests in a criminal trial.
Defenses involving irregularities in the testing can be successful. This requires defense counsel to carefully interview the observers. If the government fails to retain a positive urine sample after the test was complete, that can result in the inadmissibility of the test results.[8] Consultation with an expert is advisable to review the testing methods.
§ 24:4 - Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-37-1. Wrongful possession – with intent to distribute
3-37-2. Wrongful use
3-37-3. Wrongful distribution
3-37-4. Wrongful introduction – with intent to distribute
3-37-5. Wrongful manufacture – with intent to distribute
3-37-6. Wrongful importation or exportation
§ 24:5- Maximum Punishment
The maximum punishments are as follows:
-Wrongful use, possession, or introduction of a controlled substance under Schedules 1-III (except possession of less than 30 grams of marijuana) has a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. In marijuana cases with less than 30 grams or use, phenobarbital cases, and Schedule IV – V cases the maximum amount of confinement is 2 years.
-Wrongful distribution, possession, manufacture, or introduction of a controlled substance with intent to distribute, or wrongful importation or exportation of a controlled substance under Schedules I-III the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. In phenobarbital cases and Schedules IV-V cases, the maximum punishment is 10 years.
-If the accused was on duty as a sentinel or lookout on board a vessel or aircraft or at a missile launch facility, while receiving special pay, in time of war, or in a confinement facility the maximum period of confinement is increased by 5 years.
§ 24:6 – Lesser Included Offenses
The lesser-included offenses are:
-Wrongful possession: Article 80 – attempts
- Wrongful use: Article 112a – wrongful possession and Article 80 – attempts
-Wrongful distribution: Article 80 – attempts
-Wrongful manufacture: Article 112a – wrongful possession and Article 80 – attempts
-Wrongful introduction: Article 112a – wrongful possession and Article 80 – attempts
-Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute: Article 112a – wrongful possession, manufacture, or introduction of a controlled substance and Article 80 – attempts
-Wrongful importation or exportation of a controlled substance: Article 80 - attempts
[1] United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003)
[2] United States v. Mance, 26 M.J. 244 (C.M.A. 1988)
[3] See generally, United States v. Davis, 562 F.2d 681 (D.C. Cir. 1977)
[4] United States v. Traveler, 20 M.J. 35 (C.M.A. 1985)
[5] United States v. Newak, 15 M.J 541 (A.F.C.M.R. 1982)
[6] United States v. White, 27 M.J. 264 (C.M.A. 1988)
[7] United States v. Radvansky, 45 M.J. 226 (C.A.A.F. 1996)
[8] United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995)
